On September 14, 1998, the
Second Circuit Court of Appeals issued an important opinion in the case
of Bartlett v. New York State Board of Law Examiners, 1998 U.S.
App. LEXIS 22361 (2d Cir. 1998). The court followed the recent Supreme
Court lead in Americans with Disabilities Act (ADA) cases in reading the
statute broadly in light of congressional intent. The case involved Marilyn
Bartlett, who applied to take the New York state bar examination with accommodations
to her learning disability. The New York bar had denied the requested accommodations
(including additional time, tape recording essay answers, and circling
multiple choice answers). The denial was based on the Board's determination
that Dr. Bartlett did not have a disability entitling her to reasonable
accommodations. The district court had held that this determination was
a violation of the ADA and Section 504 of the Rehabilitation Act.

The Second Circuit's agreement
with the district court is significant in a number of respects. The appellate
court concurs in the lower court's assessment of the appropriate degree
of deference to the expertise of the state agency in making these determinations.
It also affirms the finding that the Rehabilitation Act applies to the
New York Board because applicants use vouchers from state agencies to pay
fees. Most significant, however, is the decision regarding whether Dr.
Bartlett is disabled within the statute. The appellate court reads the
definition under the Rehabilitation Act and the ADA even more broadly than
the lower court. Its reading, if applied by other courts, will have substantial
significance for individuals with learning disabilities in higher education
and professional certification settings.

To be entitled to reasonable
accommodations, one must demonstrate that there is a substantial limitation
to one or more major life activities, that one has a record of such an
impairment, or that one is regarded as being so impaired. To determine
whether someone with a learning disability meets the definition requires
two findings. First, there must be a major life activity implicated. Second,
there must be a substantial limitation in carrying out that activity. The
lower court had found for Dr. Bartlett on both counts by deciding that
she was substantially limited in the major life activity of work. Major
life activities are defined as including "walking, seeing, hearing, speaking,
breathing, learning, and working." 28 C.F.R. Section 35.104. The lower
court had determined that the major life activity at issue was working
because a professional exam was involved and that the appropriate determination
was whether Dr. Bartlett's learning disability significantly restricts
her ability to perform a class of jobs or a broad range of jobs when compared
to the average person with comparable training, skills and abilities. When
work is not the major life activity at issue, the comparison is with the
average person in the general population.

The Second Circuit applied
the definition even more broadly, thus agreeing with the result that she
is covered by the statute, by providing guidance to future courts that
will address other cases involving individuals with learning disabilities.
The court determined that the lower court erred in determining that Dr.
Bartlett was not substantially limited in the major life activity of reading
or learning. The lower court had determined that because she had self accommodated,
she had achieved roughly average reading skills when compared to the general
population, thus she was not substantially limited in that major life activity.
The appellate court disagreed by deciding that a disability should be assessed
without regard to mitigating measures, including self accommodation. The
court further found that the test used to measure her reading limitations
did not adequately measure the ability to read in a timely and automatic
manner.

The conclusion that disabilities
should be assessed without regard to mitigating measures is one that has
not been one reached by all courts, although there may be a change in that
trend. See, e.g., Washington v. HCA Health Services of Texas,1998
U.S. App. LEXIS 21551 (5th Cir. 1998).

The decision in this case
is likely to have a major impact on how professional licensing boards and
institutions of higher education respond to requests for accommodations
from individuals with learning disabilities. The decision signals a broad
reading of the ADA and highlights the fact that individuals with learning
disabilities in adult settings will generally have developed coping skills
and that this does not mean they are not still substantially limited in
major life activities.

Also significant for these
entities is the discussion of deference to these entities. In this case,
the Board's expert had determined that Dr. Bartlett was not disabled. The
Board asserted that the district court had erred in not according considerable
judicial deference to this finding. The appellate court notes that a factfinder
is entitled to deference because of expertise on technical matters foreign
to the experience of most courts. The Board's expertise is in defining
minimum qualifications for the practice of law. Its expert evaluator is
thus not entitled to considerable judicial deference. Therefore, it is
not that the Board's expert is not to be given deference, but where the
Board is the defendant, this expertise may be challenged.

Evaluators of learning disabilities
must be sure that they are using testing instruments appropriate to what
is being tested. In this case, tests that did not involve timing were used.
Dr. Bartlett's speed of reading was substantially limited, and this was
not appropriately tested by the Board's evaluator. Additional clinical
judgment was required.

Another important guidance
from this case is the danger of using automatic percentile cutoffs for
determining eligibility or disability. The court in this case found that
the expert's determination that anyone who scored above a certain percentile
on the subtests used (which were themselves problematic) did not have a
reading disability.

The National Collegiate Athletic
Association (NCAA) settlement with the Justice Department also involves
an adjustment in the use of cutoff criteria, and the need to individualize
assessments when eligibility for NCAA scholarships is measured by standardized
test scores, grade point averages, and core course requirements. The recent
settlement agreement involves a change in the NCAA automatic determinations
of eligibility.

Institutions would do well
to draw upon the increased technical assistance in making valid and reasonable
assessments about learning disabilities and appropriate accommodations.